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Burning the house to roast the pig: Can elections be saved by banning political speech?

The following essay is part of our online symposium on McCutcheon v. Federal Election Commission.

The central paradox of most campaign finance reform measures is that they are premised on the odd notion that political speech is far too important to be free. That paradox presents itself to the Justices yet again in McCutcheon v. Federal Election Commission as they prepare to rule on another First Amendment challenge to a campaign finance restriction on political spending.

Of course, the proponents of such regulations rarely frame the issue that way.  Rather, they generally argue that the First Amendment was never intended to allow unfettered political participation in the form of campaign contributions or expenditures and that the activity they seek to regulate is not really protected expression. They also argue that the subjects of their intended regulation are not entitled to constitutional privileges.

This has generated two great bumper sticker themes that have dominated the “tastes great-less filling” shouting match over political campaign regulation since Buckley v. Valeo (1976), and Citizens United v. FEC (2010):  (1) Is money speech?, and (2)  Are corporations people?  These aren’t the actual legal questions at issue of course, but are merely the caricatures of the underlying questions as translated in the political realm.

First Amendment Rorschach test

Citizens United has been a lightning rod for criticism because it answered the second of those questions in the affirmative. Well, actually, the answer was in the negative, because the real question before the Supreme Court was whether the First Amendment permits the federal government to criminalize core political expression shortly before primaries or general elections when the speaker takes a corporate form.

Somehow, it suggests a different answer when the question is framed as whether the federal government may make political speech a felony notwithstanding the First Amendment, rather than asking whether corporations, like Soylent Green, are people.  Nevertheless, the reaction to Citizens United was a predictable political Rorschach test: Supporters of restricting corporate (and union) political expenditures denounced the decision as a distortion of the First Amendment and called on various measures to rein in such an expansive reading of constitutional rights, including by amending the Constitution itself.

One proposed constitutional amendment would limit constitutional protections to “natural persons,” specifying that the words “people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state.”  Another would empower Congress to “advance the fundamental principle of political equality for all” by regulating “the raising and spending of money and in-kind equivalents” with respect to federal and state elections.  Specifically, it would authorize regulation of campaign contributions, as well as “expenditures that may be made by, in support of, or in opposition to such candidates.”

The reaction mirrors the vociferous (and nearly successful campaign) to limit the scope of the First Amendment following the Supreme Court’s decisions in Texas v. Johnson (1989) and United States v. Eichman (1990), which invalidated state and federal laws prohibiting desecration of the U.S. flag.  Multiple bi-partisan proposals were advanced in successive congressional sessions, including this proposed amendment in the 109th Congress:  “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”  As in the current dispute over the extent to which political contributions count as “speech,” supporters of the flag amendments echoed then-Chief Justice William Rehnquist’s dissenting sentiment in Johnson that “the public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace.”

The next Citizens United?

Are we about to witness a similar constitutional confrontation when the Supreme Court takes up campaign finance regulations once again in McCutcheon?

In McCutcheon, the Supreme Court will consider the extent to which campaign contributions may be protected as speech as one of the questions raised when it hears arguments on October 8.  The principal questions are whether aggregate limits for campaign contributions imposed by federal law violate the First Amendment. Petitioners do not challenge restrictions on base contributions (e.g., the ceiling on individual contributions to a candidate, a political action committee, or a party committee), but argue that the aggregate limit on total contributions unconstitutionally restricts the number of candidates a contributor may support. Petitioners also ask the Court to reopen the distinction between direct expenditures and contributions, first articulated in Buckley, with the latter protected only secondarily as an aspect of the First Amendment right of association.

So, is a political contribution speech? Just as a gas-soaked American flag and a match are not speech if not used for an expressive purpose, neither is money unless it is used to promote a message, such as a contribution to a political campaign.  As First Amendment scholar Geoffrey Stone has written, “[e]ven though an object may not itself be speech, if the government regulates it because it is being used to enable free speech it necessarily raises a First Amendment issue.”  If that were not true, Stone reasons, “then the government could make it a crime for any person to use money to buy a book.” It is no different here.  The mystery is why First Amendment associational rights – if, indeed, that is all that is involved here – would receive less rigorous constitutional protection than First Amendment rights of expression. After all, the right to association, and constitutional limits on the government’s ability to restrict it, has been critical in the evolution of the First Amendment.

Is money speech? Consider Holder

Another mystery is how the competing ideological factions on the Court appear largely to switch sides on whether a contribution may have a constitutionally cognizable expressive component depending on the nature of the regulation at issue.  For example, in Holder v. Humanitarian Law Project   (2010) the Court split six to three, upholding a federal prohibition against providing “material support or resources” to groups deemed by the U.S. government to be terrorist organizations.  The law defines the term “material support” broadly to encompass “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities,” but also such things as “training, expert advice or assistance.”  The prohibition reaches support even for peaceful activities, and the government conceded in the Ninth Circuit that it would even bar filing an amicus brief in support of a group designated as a foreign terrorist organization.

In Holder, the conservatives, led by the Chief Justice (but including Justice John Paul Stevens) were concerned that material support, even if limited to peaceful pursuits, could be diverted to aid terrorism because “money is fungible.”  At the same time, the liberal dissenters, in an opinion by Justice Stephen Breyer, wrote that the majority’s reasoning “stretch[ed] the concept of ‘fungibility’ beyond constitutional limits” because, among other problems, “there is no natural stopping place” for the rationale.  To be fair, Justice Breyer’s dissent focused on those applications of the law where “material support” took the form of speech, but the law expressly encompassed all forms of support, and the dissent highlighted the ambiguity of trying to draw a firm line between money and speech.

Assessments of the Roberts Court’s First Amendment record have rightfully identified Holder as a low point in its protection of freedom of expression.  For example, Dean Erwin Chemerinsky described Holder as “[p]erhaps the most troubling First Amendment decision of the Roberts Court.”  The central problem, as identified both by Justice Breyer and Dean Chemerinsky, was that the majority in Holder approved restrictions on speech without the slightest proof it was likely to cause harm. If such is a legitimate concern with respect to limiting support for foreign organizations – and it is – then the Court should be wary about approving broad limits on “material support” for political speech in the United States.

The Holder majority may well be criticized for inconsistency if some of the same Justices that approved the restrictions of the Antiterrorism and Effective Death Penalty Act of 1996 are now more skeptical of the aggregate contribution limits of the Federal Election Campaign Act and the Bipartisan Campaign Reform Act. Likewise, those who criticize the Court for decisions like Holder should check their premises before urging the Court to uphold the lower court in McCutcheon.

The answer is not to suggest that the Court should interpret the First Amendment’s protections more narrowly and the government’s power more expansively.  Rather, it is to urge all the members of the Court not to approve any limits on political speech, or its material support, without strictly scrutinizing both the government’s rationale and its proof of the problem it seeks to combat.

Robert Corn-Revere is a partner in the Washington, D.C. office of Davis Wright Tremaine where he specializes in media and First Amendment law. 

Recommended Citation: Bob Corn-Revere, Burning the house to roast the pig: Can elections be saved by banning political speech?, SCOTUSblog (Aug. 13, 2013, 10:03 AM),